Crime, punishment and 'The Brain Defense'

By Mike Yawn

March 3, 2017Updated: March 6, 2017 11:47am

Kevin Davis has worked as a journalist for decades, covering crime stories for newspapers and working as a writer for the American Bar Association Journal. His latest book covers "The Brain Defense" - the idea that a criminal's wrongful action may be a product of a faulty brain, thus mitigating responsibility. Such defenses have increased by a factor of three in the past decade, and Davis' "The Brain Defense" explores the science and the law behind this trend.

Q: As a nonattorney and nonscientist, what did you do to understand this intersection between law and criminal behavior?

A: That was my greatest challenge, but I've been covering crime stories for decades, watching trials, interviewing lawyers, so I have some background in this area. And like a good journalist, I dive into my topic, do the research and rely on my natural curiosity to answer questions as I go.

More Information

'The Brain Defense: Murder in Manhattan and the Dawn of Neuroscience in America's Courtrooms'

By Kevin Davis

Penguin Press, 336 pp., $28

Q: What is the "Brain Defense"?

A: It's when defense attorneys bring neural psychology into courtrooms in an attempt to excuse or diminish their client's responsibility. It's different than your basic insanity defense, bringing more neural science into the courtroom. It's a way of explaining criminal behavior through a better understanding of the brain.

Q: The poster boy for that is Herbert Weinstein. Tell us about his case.

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A: Weinstein is mentioned in dozens of medical and law journals on this topic. Here's a guy who is 65, a family man, never committed an act of violence in his life. He was praised for being kind, gentle and giving. So when he got into an argument with his wife, killed her and then threw her from the 12th story of his Manhattan apartment window, it drew attention. His attorney ordered a brain scan, which showed an orange-sized cyst in the frontal lobe - the area of the brain that affects judgment, decision making, and executive functions. And in this case - for the first time ever - a brain scan was used in court to help determine guilt or innocence.

Q: Though Weinstein was 65, one of the areas being investigated is childhood adverse experiences, whether they be stress, abuse or brain trauma.

A: The idea is that the developing brain is susceptible to trauma and that stresses inhibit proper development of neural networks. Studies show that young people are already prone to impulsive behavior that is heavily influenced by peer presence, so it is an area particularly ripe for additional study. But researchers have documented the fact that many of the adults they have worked with share a common experience of a trauma, extensive stress or abuse from childhood. The child psychologist Bruce Perry describes some of these children as being "incubated in terror," and I think that's both chilling and accurate.

Q: One group potentially affected by early brain trauma is child athletes. We hear a lot about athletes committing crimes. Is that a media thing, or is there some science to it?

A: This is difficult to sort through. It's documented that many football players have suffered concussive brain injuries and chronic traumatic encephalopathy (CTE). The difficulty is proving cause and effect. Athletes, by nature, are probably more aggressive than the average person. They are also more likely to have head trauma. At this point, I don't think we can definitively point to the head trauma as the causal link. It's a gray area, but as we see, many lawyers are picking up this idea and bringing it to the courtroom.

Q: In the book, you explore the philosophical aspects of this defense. Are people whose brains are impaired responsible?

A: I am not opposed to using the idea of a brain defense as a mitigating factor in the sentencing stage. The most important things to me in sentencing decisions are looking at the entirety of a person's life and determining whether there are mitigating or aggravating circumstances. We have two obligations. The first is to protect society from violent people. We also have an obligation to offer understanding and compassion to people in the criminal justice system. I don't think those ideas are mutually exclusive, and I think that's where neuroscience may prove really helpful.

Q: You live in Chicago, which had almost 800 murders this past year. Is there anything that can be done about that?

A: I try not to be cynical; it breaks my heart. I live here. A couple of years ago, when my son was in kindergarten, he was walking home with his mother. Right in front of school, he found a loaded revolver. He said, "Mom, look, a gun!" And that just crystallized for me how endemic the culture of violence is in this city. There are some wonderful people here trying hard to make things happen, but it's going to require more than a law-enforcement response. When children are raised in this environment, it's adding to their stress levels and, if it's severe enough, it's truly like being "incubated in terror."